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  DAVID STIKES, on behalf of himself and
v. No. 89-15208 CHEVRON U.S.A., INCORPORATED, a
Chevron's brief (at 31) expresses mystification at why Stikes devoted a substantial part of his opening brief (at 29-46) to arguing that his state law claims were not preempted, and whether this is just a continuation of the first argument in Stikes' brief that the case was improperly removed. But as our opening brief showed, the question of preemption, even preemption by section 301, is separate from the question of removal, and it is quite possible that in some cases preemption will be appropriate under section 301, but the case will not be removable. That is the point which the Supreme Court made in Oklahoma Tax Commission v. Graham, 109 S. Ct. 1519, 1521 (1989), in the quotation set forth in our opening brief at 23, to which Chevron never attempts a response: claims are not removable "even though an interpretation of the collective bargaining agreement might ultimately provide an employer a complete defense to the individual claims . . .." See also Smolarek v. Chrysler Corp., 131 LRRM 3022 (6th Cir. 1989) (en banc). It is Chevron's persistent blurring of the lines between removal and preemption that is at the heart of the error in its brief on both points. Before turning to this matter, however, we address another pervasive error in Chevron's brief: the contention that California privacy law depends to any significant degree on the collective bargaining agreement ("CBA") between Chevron and Stikes' union. A. California Law Does Not Require That Collective Bargaining Agreements Be Contrued In Order to Adjudicate an Employee's Privacy Claims. 1. In both its preemption and removal arguments, Chevron repeatedly asserts that California law requires a court to look to a CBA in order to determine the reasonable expectations of the parties concerning the search of a personal automobile. Given the extent to which Chevron relies on this proposition, it is shocking that Chevron has not cited a single state case to support it. Although there have been numerous state decisions concerning workplace drug-testing and privacy, none of them looked to the CBA for guidance concerning the reasonable expectations of the parties. Indeed, to the extent that federal law concerning the constitutionality of searches may be similar, we note that the federal constitutional cases also proceed without the slightest reliance on the CBAs that cover the workplaces at issue there. E.g., National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989); AFGE Local 2110 v. Turnage, No. C-88-20357-WAI, 89 Daily Journal D.A.R. 9875 (N.D. Cal. 1988). See also Coppinger v. Metro North, 861 F.2d 33 (2d Cir. 1988), discussed in our opening brief at 40-41. Surely, if the state law right of privacy were waivable, or were in some way alterable by a CBA, the California courts would routinely refer to them in their numerous decisions on workplace privacy, but they have not. Stikes does not dispute that Fourth Amendment rights can be waived, in the sense that an individual can consent to a specific request from the authorities to search his person or his belongings, when the request is directly presented by a specific set of circumstances. Chevron Br. at 32 n.21. But that is very different from saying that an individual employee, by coming to work for an employer that asserts a right to perform searches, or by working under a CBA that does not forbid such searches, thereby waives all of his privacy rights in the future, no matter how outrageous the employer's request may be. The California Constitution's declaration that the right of privacy is "inalienable" would be meaningless if it did not protect employees against such a blanket, anticipatory waiver. Nor does Chevron make any effort to deal with the cases, cited in our opening brief, at 15, showing that under California law, an employee may not be held to have waived his constitutional rights on such a theory, even if the CBA purports to effect such a waiver. Yet that is the only basis for finding a waiver here, where Stikes was fired for refusing to give personal consent to the specific search requested. Chevron does cite numerous cases for the proposition that privacy depends on a person's reasonable expectations, which in turn are a function of "common habits in the use of domestic and business properties," Br. at 12-13, quoting In re Deborah C., 30 Cal.3d 125, 137, 635 P.2d 446 (1981). But reference to "common habits" is very different from reliance on the specific provisions of CBAs. Indeed, if the practices of an individual or a corporation that is charged with invasion of privacy could control the determination of whether there has been a violation of another person's constitutional right of privacy, there would be nothing left of the right of privacy, because the constitution would only prohibit persons from invading privacy if it were not their practice to do so. None of the cases cited by Chevron comes close to supporting such a result, and it is remarkable that not a single one of its authorities points to the presence or absence of provisions in the contracts between the persons involved to determine the extent of their privacy expectations, not to speak of relying on collective contracts. A number of these cases involved invasion of privacy by disclosure of information concerning persons with whom the person making the disclosure must certainly have had a contract, e.g., Burrows v. Superior Court, 13 Cal.3d 238, 529 P.2d 590 (1974) (bank's disclosure of information about a depositor); Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 542 P.2d 977 (1975) (same), People ex rel. Franchise Tax Board v. Superior Court, 164 Cal. App. 526, 210 Cal. Rptr. 695 (1985) (insurance company's identification of policy holders). Therefore, the absence of any reference to such contracts strongly suggests that the state courts regard them as irrelevant. 2. Although we believe that California law plainly would not require reference to the CBA in order to decide Stikes' privacy claim, and that Chevron has the burden of showing that California law plainly requires such reference, the dispute between the parties about this issue of state law highlights the reason why the Court should abstain, if it decides that it has jurisdiction. Chevron's principal objection to abstention is that this Court said in Knudsen Corp. v. Nevada State Dairy Comm., 676 F.2d 374, 377 (1982), that preemption of state laws by the federal antitrust laws does not present the sort of constitutional question that abstention should be invoked to avoid, because the question is not the meaning of the constitution but the meaning of a particular federal statute. Br. at 27-29. Chevron candidly concedes that the decision of the panel in Knudsen is inconsistent with this Court's earlier decision, in IBEW v. Public Serv. Comm, 614 F.2d 206, 213 (1980), that abstention was proper to avoid confronting the question of whether state laws were preempted by the federal labor laws. Although IBEW was not mentioned in Knudsen, Chevron urges that the later authority be followed. However, because one panel of this Court cannot overrule the decision of another, if there is inconsistency among a circuit's precedents, it is the earlier authority which must be followed, not the later one. Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir. 1981); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981).(1) Moreover, in our view, the panel in IBEW took the better position. Abstention is not based solely on a desire to avoid construing a particular phrase in the constitution; it is also based on considerations of comity and federalism. Thus, the federal courts should avoid striking down laws of the sovereign states without first giving the states an opportunity to construe those laws in a way that avoids a constitutional confrontation. Such concerns are present as much in preemption cases as in any other constitutional case, Druker v. Sullivan, 458 F.2d 1272, 1274 (1st Cir. 1972); Street, Electric Railway Division 1287 v. Dalton, 206 F. Supp. 629, 634 (E.D. Mo. 1962) (three-judge court abstains to avoid labor law preemption question); see also Metlakatla Indian Cmnty. v. Egan, 363 U.S. 555, 561-563 (1960), and especially so when preemption is based on the federal common law of CBAs under section 301, which is more the product of the views of unelected judges than of Congress. Accordingly, abstention should be ordered, if the removal is not overturned.(2) B. The Case Was Improperly Removed Based on a Theory of "Complete Preemption." Chevron implicitly concedes that, if the CBA became relevant to this case only as a matter of defense, removal would be inappropriate. Thus, trying to avoid the force of Caterpillar v. Williams, 482 U.S. 386 (1987), as construed in Oklahoma Tax Commission, Chevron denies that its argument for the relevance of the CBA is based on waiver of state law rights that would otherwise exist. Rather, Chevron argues, privacy rights are determined according to a multi-factor test depending on all the relevant circumstances, and one of those relevant circumstances, says Chevron, is the CBA. But this argument does not bolster Chevron's position on removal, or on preemption for that matter, for three reasons that we now explain. First, Chevron's effort to avoid characterizing its arguments as based on waiver is merely semantic, and is contrary both to good sense and to this Court's precedents. Second, Chevron has not shown that there is any dispute about the meaning of the CBA, except possibly insofar as Chevron may be claiming that there has been a waiver of privacy rights that would otherwise exist. And third, even if the CBA entered into the calculus of a multi-factor test, that surely would not warrant removal, even if it might bear on the issue of preemption of all or part of the case. 1. Chevron argues that, although Stikes' complaint made no reference to the CBA, the complaint was "artfully pleaded" -- i.e., Stikes intentionally omitted from his complaint allegations that were necessary for him to state a claim under California law. Br. at 9. Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1427 (9th Cir. 1984) (artful pleading found only when plaintiff fraudulently avoids allegations to avoid federal jurisdiction). Perhaps the best way to think about that contention would be to begin by asking, what fact should Stikes have alleged in his complaint in order to state a valid cause of action? Should he have mentioned the existence of the CBA? That is surely incorrect, because the right of privacy applies whether or not the person asserting the right is covered by a CBA, or indeed by any contract at all. Should he have alleged a particular provision of the CBA and claimed that the provision was violated? If so, which provision did Stikes have to allege was violated in order to state a privacy claim under California law? The answer to these questions is also plainly no. Stikes is not claiming that Chevron violated his contractual rights; he is claiming a violation of his rights under the California constitution. In this case, it is not Stikes but Chevron that needs to establish a fact about the CBA, specifically, that there is something about the CBA that eliminates or reduces Stikes' right of privacy, or something that authorized the search that Chevron desired to make of Stikes' personal automobile. In other words, for the omission of the CBA to be "artful," the CBA would have to be the "but-for" cause of Stikes' loss of a right of privacy that he would otherwise enjoy -- unless the CBA had such a but-for effect, it would not be necessary to consider the CBA in order to determine Stikes' state law claim. But obviously, the only way in which a contract can surrender a right that would otherwise be enjoyed is by waiving it. Whether Chevron prefers not to use that label in its argument is irrelevant because the question is, does Stikes or Chevron rely on the CBA? Because the answer to that question is plainly "Chevron," it is Chevron and not Stikes that is engaging in "artful pleading." In any event, Stikes did not create the waiver terminology; he took it from this Court's rulings in Laws v. Calmat, 852 F.2d 430, 433 n.4 (9th Cir. 1988), and Utility Workers Local 246 v. Southern California Edison, 842 F.2d 1083, 1086 (9th Cir. 1988). There, this Court assumed that the right of privacy was waivable, and, hence, concluded that it would be necessary to construe the CBA to decide whether there had been a waiver. We can understand why Chevron would now find that analysis to be inconvenient, in light of the subsequent Supreme Court decision in Oklahoma Tax Commission, which made clear that a defendant's reliance on a CBA does not make the complaint removable. However, that does not permit Chevron to avoid the clear teaching of the Supreme Court in Oklahoma Tax Commission, quoted on page 1, supra, by relegating it to a passing comment in a footnote. Br. at 22 n.10. 2. Moreover, Chevron has made no effort to demonstrate the existence of a dispute between the parties about the meaning of the CBA, even though it is because of the Court's alleged need to resolve such a dispute that Chevron argues for both removal and preemption. Chevron's brief never explains how particular language in the CBA is either helpful to its position on the merits of Stikes' state law claims (i.e, that it is material), or what dispute exists between the parties about such language. Although Chevron does point to its announced search policy, Stikes certainly does not dispute that Chevron has asserted its right to maintain that policy. Similarly, in contending that the policy is unlawful as applied to him, Stikes does not rely on any contractual infirmity in the policy; his claim is based solely on the state constitutional infirmity. Unless there is contract language that might be said to be subject to a material dispute between the parties, then it can scarcely be necessary for the Court to resolve such a dispute in order to decide this case. In its brief, Chevron refers to the existence of certain contractual provisions concerning management rights, safety, and discipline, but none of those provisions has anything to do with searching employees' personal automobiles.(3) Chevron might be arguing that the CBA does not regulate those subjects at all, but if that is why Chevron deems the CBA to be relevant, that does not create a dispute about the meaning of the CBA, because, for the purpose of this case, we readily concede that the CBA did not prohibit the search. The reason why Stikes is free to make that concession here is that the privacy right on which he relies does not depend on the existence of any contractual protection.(4) The only way in which the cited language of the CBA might come into play is if Chevron were to make the argument that, in light of these provisions of the CBA, the union has granted Chevron the right to impose whatever policies it wishes in the area of car searches. Stikes disputes that California law would recognize an attempt by a union to waive an individual employee's privacy rights in a CBA (this point is argued further, supra at 2-5), but the dispute about the CBA, if there is any, is confined to the question of whether there has been a waiver, and that dispute arises only as a defense and hence does not create federal jurisdiction warranting removal.(5) 3. In any event, Chevron would not be entitled to removal even if it were correct, Br. at 14, 21-22, that the CBA becomes relevant to this case as one of a myriad of factors that must be considered in deciding whether plaintiff had an objectively reasonable expectation of privacy (we dispute this proposition supra at 4-5). The right of a defendant to remove on a preemption theory is extremely narrow, and applies only to cases in which federal law completely preempts a state from stepping in at all. Thus, even a finding of preemption, even one based on the need to interpret a CBA, does not necessarily mean that the defendant properly removed the case, as both Oklahoma Tax Commission and Caterpillar made clear. Here, even under Chevron's analysis, there can be no claim of complete preemption. Chevron does not claim that a CBA, either this one or any other, ipso facto eradicates a claim of privacy. Instead, it argues that the CBA and the practices arising under it are simply circumstances that the courts must weigh, i.e., which "require construction," Br. at 14 n.7, in determining what were the plaintiff's reasonable expectations of privacy. But if the CBA is only one of many factors, it cannot possibly constitute the complete preemption necessary to sustain removal. Thus, even under Chevron's view of California law, removal was still improper. C. Stikes' Claim Is Not Preempted. Even if Chevron succeeds in persuading the Court that a privacy claim must necessarily be considered in light of the provisions of the CBA, and that the claim is automatically removable, that does not mean that the entire claim is necessarily preempted. As we observed in our opening brief, at 35-36, in another argument to which Chevron's brief fails to respond, the Lingle Court anticipated that a plaintiff might have to prove some matters which depended on the meaning of the CBA in the course of litigating a state law claim. In that event, the Court specified that, even if federal law might govern the questions relating to the CBA, that would not mean that the remaining issues pertaining to the claim, which depended on state law, would be preempted. 108 S. Ct. at 1883 n.9, 1885 n.12. So, here, even assuming that the CBA is one of a number of relevant factors, Chevron would have to establish that this factor (the CBA) in fact undercuts Stikes' claim; then it would remain for the courts to decide the significance of this factor, as a matter of state law, as compared to the remaining factors. Otherwise, the state of California would be barred from applying its law of privacy to unionized workplaces at all, even workplaces where the CBA turns out not to support the employer- defendant, simply because the state was willing to allow juries to consider CBAs along with a myriad of other factors in deciding the reasonableness of a worker's expectation of privacy. If anything, such a rule would encourage the states to remove CBAs from consideration as a matter of state law, as a way to preserve their power to protect their citizens against unreasonable searches, and that would scarcely be consistent with the federal policy encouraging collective bargaining.(6) In its brief, Chevron recoils from the notion that federal labor law bars the state of California from protecting its citizens against invasions of privacy; this characterization of its argument, according to Chevron, is "baseless hyperbole." Br. at 14 n.7. But it is Chevron that refuses to face up to the implications of its own position, which is that the mere assertion of a contractual defense, without even having to establish the validity of the defense, is enough to warrant preemption. And preemption means that the court believes that Congress, exercising its solemn power under the Supremacy Clause, has decided to forbid the states to provide specific protections to the privacy interests of their citizens whenever an employer and a union enter into a CBA. We can appreciate Chevron's discomfort with its position, but that is where its argument leads.(7) Elsewhere, however, Chevron concedes that it is using preemption to eviscerate state regulation of privacy, quoting from a district court opinion to the effect that drug abuse is a national problem and thus "uniform laws" should be used to determine the reasonableness of employers' invasion of workers' privacy. Br. at 11 n.3. The decision to substitute a national standard of reasonableness for the judgments of the individual states about when privacy ought to be protected is one for Congress to make, however, but Congress has not passed any law authorizing courts to regulate drug-related searches based on generalized notions of propriety. Indeed, the Supreme Court has emphasized that "the protection of a person's general right of privacy . . . is . . . left largely to the law of the individual states." Katz v. United States, 389 U.S. 349, 350-351 (1967). Accordingly, there is no basis for using section 301 to impose a national standard governing when it is reasonable to invade workers' privacy. In our opening brief, we argued that a holding that Congress intended to preempt state regulation of the terms and conditions of employment would be inconsistent with the fact that Congress has enacted a broad range of employment regulations and has provided that such regulations exist side-by-side with whatever protections workers may obtain through collective bargaining. Br. at 30-33. In its brief, Chevron suggests that because CBAs govern an employee's working conditions, any state law claim that challenges a working condition that is regulated by the CBA is necessarily intertwined with the CBA and thus is preempted. Br. at 17-18, 22. The federal analogies are distinguished on the ground that none of those laws depends in any way on the terms of a CBA. Br. at 32. This distinction is based on an erroneous assumption because there are many substantive federal statutes whose enforcement may implicate the CBA in one way or another, at least to the same extent as the privacy claim here. For example, in a Title VII case, an employer may respond to the charge of racial discrimination by asserting that the real reason for the discharge was that the employee's conduct violated plant rules that are sanctioned by the CBA. Yet the Supreme Court has squarely held that Title VII claims may proceed independently of the contractual provisions, even if an arbitrator has previously determined that there was, in fact, a contractual basis for the discharge. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). And in cases under the Fair Labor Standards Act, many of the statutory provisions, although they have a meaning apart from the CBA itself, are related to the employment relationship between the worker and the company which is governed in part by the CBA. For example, a job description under the CBA may help determine the worker's "principal" duties, 29 U.S.C. § 254(a)(2), or the contract may provide useful guidance in deciding whether certain activity by the employee was before "the time at which such employee commences" work. 29 U.S.C. § 254(a). Indeed, the overtime provisions depend on the base wage rate that is itself governed by the CBA, and certain provisions of the Portal-to-Portal amendments to the FLSA may be waived by the CBA. 29 U.S.C. § 254(b). Yet an employee may sue for a violation of the FLSA independently of whatever the union may do with his grievance. Barrentine v. Arkansas-Best Freight Syst., 450 U.S. 728 (1981). The fact that a contract may prove relevant to some aspect of the litigation under one of these federal statutes does not lead to their preemption by section 301, and there is no reason why state law rights, that are also based on extra-contractual duties, should be preempted simply because contractual questions relating to them may arise from time to time. Indeed, although Chevron cites Hyles v. Mensing, 849 F.2d 1213 (9th Cir. 1988), and Miller v. ATT Network Syst., 850 F.2d 543 (9th Cir. 1988), for the proposition that this Court rejects the distinction between tort duties founded on contract violations, which are preempted, and tort duties found outside the CBA, which are not, Br. at 32, Miller squarely accepted that distinction. In Hyles and Miller, this Court held that the particular claims of intentional infliction of emotional distress asserted there were dependent on the standards of the CBA to determine whether there was a violation, but in Miller the Court expressly stated that not all claims for intentional infliction of emotional distress would be preempted. 850 F.2d at 550 n.5. Some such claims, the court noted, may be based on standards for employer conduct created outside the CBA, such as a criminal statute, and therefore would not be preempted. Id. Because here, all of Stikes' claims rise or fall on the question of whether his constitutional right of privacy protected him against a compulsory search of his personal automobile, under Miller that determination does not depend on the meaning of the CBA. And even if the CBA were to become tangentially implicated, Lingle makes it clear that the meaning of the CBA could be resolved without preempting Stikes' underlying state law claim, in the ways discussed in our opening brief, at 41-46, which are completely unanswered by Chevron. The judgment of the district court should be reversed. Respectfully submitted,
Paul Alan Levy Alan B. Morrison Public Citizen Litigation Group
Robert N. Jacobs
Attorneys for David Stikes April 17, 1998 1. Contrary to Chevron's brief, at 28-29 and n. 18, Newberry v. Pacific Racing Ass'n, 854 F.2d 1142 (9th Cir. 1988), did not say that, as a general matter, claims of section 301 preemption present no constitutional questions for decision. Rather, the libel and blacklisting claims on which Newberry sought abstention were rejected as a matter of state law. In that circumstance, this Court refused to abstain because the claims could not "present [a] federal constitutional issue." Id. at 1151. 2. Contrary to Chevron's brief, at 29 n.18, the principal constitutional issue on which abstention was based in AFL v. Watson, 327 U.S. 582 (1946), was preemption by the federal labor laws, although there were other constitutional issues involved in the case. Id. at 593-599. 3. A management rights clause is particularly useless for Chevron's purposes, because it does no more than give Chevron the same powers that it would have if it were a non-union employer governed by the doctrine of at-will employment: that is, it would allow Chevron to do anything that is not forbidden by law. But because even Chevron does not dispute that at-will employees are protected by the right of privacy, Chevron would not aid its defense even if it could show that the management rights clause reaches the search of Stikes' car. 4. Even if the CBA did regulate those subjects, the mere existence of rights in the CBA that might or might not be parallel to rights provided by state privacy law would not warrant a finding of preemption, let alone be a basis for removal. Lingle v. Norge, 108 S. Ct. 1877 (1988). 5. As argued in our opening brief, at 41-46, Stikes does not admit either that the union has waived his privacy rights, or that a decision about waiver is the sort of dispute which is preempted by section 301; indeed, Chevron does not even respond to these arguments, in light of its basic position that the case has nothing to do with waiver. 6. Contrary to Chevron's arguments, Br. at 17 n.8, the fact that drug-testing programs may be a proper basis for collective bargaining is completely consistent with state regulation of employer searches. See our opening brief at 31-32. Public law frequently creates minimum conditions of employment, while leaving to negotiation the question whether the employer will provide better conditions. 7. Contrary to Chevron's brief, at 1, a number of pre-Lingle cases held that employees' state privacy claims were not preempted by section 301 and not removable. Cronan v. New England T&T Co., 1 IER Cases 658, 661 (D. Mass, 1984); Cokely v. Pacific Gas & Elec., 119 LRRM 3455, 3458 (N.D. Cal. 1984). We note that the 4th and 5th Circuit cases cited by Chevron on the other side of this issue, Br. at 1, 18, were also decided before Lingle and Caterpillar, and so have little force here. Those cases are criticized in Levy, State Regulation of Drug-Testing: Are Organized Workplaces Exempt?, 1988 U. Chi. Legal F. 141. more resources
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